The Owners - Strata Plan No 30691 v Pickard [2024] NSWCATAP 126

The Owners - Strata Plan No 30691 v Pickard [2024] NSWCATAP 126

The two-year time limit in s 106(6) of the Strata Schemes Management Act 2015 (NSW) is an essential element of the statutory cause of action and operates as a substantive condition circumscribing the right to damages under s 106(5). The Tribunal has no jurisdiction to extend the time for bringing such action by use of s 41 of the Civil and Administrative Tribunal Act 2013 (NSW). Applications brought outside this period cannot be prosecuted and must be dismissed. Previous authority to the contrary (Hua Nan Trading) was found to be plainly wrong and departed from.

Jurisdiction
Australia
Judgment Date
28 June 2024
Procedural Posture
Appeal / Principal Judgment
Outcome
Appeal upheld
Legal Topics
['extension of Time' 'breach of Statutory Duty' 'jurisdiction' 'limitation Periods' 'appeal and Precedent']
['strata Law' 'administrative Law' 'statutory Interpretation'] ['extension of Time' 'breach of Statutory Duty' 'jurisdiction' 'limitation Periods' 'appeal and Precedent']

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Procedural Posture

Appeal / Principal Judgment

Legal Issues

  1. 1 ['Whether the Tribunal may extend the two-year time limit under s 106(6) of the Strata Schemes Management Act 2015 (NSW) for applications by lot owners to recover damages for breach of statutory duty' 'Proper construction of s 106(6) in light of s 41 of the Civil and Administrative Tribunal Act 2013 (NSW)' 'Whether appeal panel should depart from previous appeal panel authority (Hua Nan Trading Pty Ltd v The Owners – Strata Plan No 32396)']

Ratio Decidendi

The two-year time limit in s 106(6) of the Strata Schemes Management Act 2015 (NSW) is an essential element of the statutory cause of action and operates as a substantive condition circumscribing the right to damages under s 106(5). The Tribunal has no jurisdiction to extend the time for bringing such action by use of s 41 of the Civil and Administrative Tribunal Act 2013 (NSW). Applications brought outside this period cannot be prosecuted and must be dismissed. Previous authority to the contrary (Hua Nan Trading) was found to be plainly wrong and departed from.

Court Disposition

Appeal upheld

Orders

  • ['Appeal upheld.' 'Order 6 made in proceedings 2022/00433027 is set aside.' 'If the Appellant seeks costs, written submissions must be filed and served within 14 days.' "If the Respondent opposes an application for costs, its submission shall be filed and served within 14 days following service of the Appellant's...